People v. Walter V.

178 A.D.3d 968

112 N.Y.S.3d 518 (Mem)

The PEOPLE, etc., Respondent,

v.WALTER V. (Anonymous), Appellant.

2016–08319

2018–06214

Ind. No. 2610/14, S.C.I. No. 1100/15

Supreme Court, Appellate Division, Second Department, New York.

Submitted—September 19, 2019

December 18, 2019

Laurette D. Mulry, Riverhead, N.Y. (Lisa Marcoccia of counsel), for appellant.

Timothy D. Sini, District Attorney, Riverhead, N.Y. (Grazia DiVincenzo and Guy Arcidiacono of counsel), for respondent.

ALAN D. SCHEINKMAN, P.J., REINALDO E. RIVERA, CHERYL E. CHAMBERS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

ORDERED that the judgments are affirmed.

Pursuant to a plea agreement, the defendant pleaded guilty to three counts of assault in the first degree ( Penal Law § 120.10[1] ) and three counts of gang assault in the first degree ( Penal Law § 120.07 ) under Indictment No. 2610/14 and promoting prison contraband in the first degree under Superior Court Information No. 1100/15. The defendant was adjudicated a youthful offender and was sentenced to concurrent indeterminate terms of imprisonment of 1? to 4 years on each count in accordance with the plea agreement.

Contrary to the defendant's contention, the record demonstrates that he knowingly, voluntarily, and intelligently waived his right to appeal (see People v. Sanders, 25 N.Y.3d 337, 341, 12 N.Y.S.3d 593, 34 N.E.3d 344 ; People v. Lopez, 6 N.Y.3d 248, 255–256, 811 N.Y.S.2d 623, 844 N.E.2d 1145 ; cf. People v. Pelaez, 100 A.D.3d 803, 804, 954 N.Y.S.2d 554 ).

The defendant's contention that his pleas were not knowing, voluntary, and intelligent survives his valid appeal waivers (see People v. Martinez, 155 A.D.3d 1063, 64 N.Y.S.3d 587 ; People v. Smith, 146 A.D.3d 904, 904–905, 44 N.Y.S.3d 771 ; People v. Magnotta, 137 A.D.3d 1303, 27 N.Y.S.3d 403 ). However, the defendant failed to preserve this contention for appellate review, since he did not move to withdraw the pleas on this ground prior to imposition of the sentences (see CPL 220.60[3] ; 470.05[2]; People v. Clarke, 93 N.Y.2d 904, 906, 690 N.Y.S.2d 501, 712 N.E.2d 668 ; People v. Lopez, 71 N.Y.2d 662, 665, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Mejia, 112 A.D.3d 855, 856, 976 N.Y.S.2d 570 ; People v. Hayes, 91 A.D.3d 792, 936 N.Y.S.2d 902 ). Furthermore, the exception to the preservation requirement does not apply here because the defendant's plea allocutions did not cast significant doubt on his guilt, negate an essential element of the crimes, or call into question the voluntariness of his pleas (see People v. McNair, 13 N.Y.3d 821, 822, 892 N.Y.S.2d 822, 920 N.E.2d 929 ; People v. Lopez, 71 N.Y.2d at 666, 529 N.Y.S.2d 465, 525 N.E.2d 5 ; People v. Mejia, 112 A.D.3d at 856, 976 N.Y.S.2d 570 ; People v. Soria, 99 A.D.3d 1027, 1027, 952 N.Y.S.2d 300 ). In any event, the record reveals that the defendant's pleas were entered knowingly, voluntarily, and intelligently (see People v. Harris, 61 N.Y.2d 9, 471 N.Y.S.2d 61, 459 N.E.2d 170 ; People v. Gibson, 95 A.D.3d 1033, 1033, 944 N.Y.S.2d 237 ).

The defendant's remaining contentions are without merit.

SCHEINKMAN, P.J., RIVERA, CHAMBERS and BRATHWAITE NELSON, JJ., concur.